The IANA transition still appears to be on track for consummation at the end of the September 30th expiration date of the current contract between NTIA and ICANN in the wake of the May 24th Senate Commerce Committee oversight hearing on "Examining the Multistakeholder Plan for Transitioning the Internet Assigned Number Authority". That is, while there are clearly some concerns on both sides of the aisle about terminating the remaining U.S. government ties to ICANN, a critical mass of Committee members did not demonstrably voice support for near-term intervention to delay the transition. However, some of them are flirting with the concept of a "short extension" to permit a "test drive" of the new accountability mechanisms, and this concept could gain momentum over the summer.

One overall observation is that, for all the talk (and unfortunately, the evidence) of partisan rancor and dysfunction in federal government activities, the hearing was a remarkably encouraging display of solid, bipartisan oversight conducted by Senators who had clearly arrived well briefed and focused. All the Senators involved in this exercise deserve praise for the way they conducted themselves on behalf of their constituents, the nation as a whole, and the global Internet community that needs assurance of a functional and accountable DNS coordinator.

Here are some observations on what transpired:

Not a single Senator present opposed the transition outright, although some want NTIA to extend its contract with ICANN so that the accountability mechanisms can be tested.

Concerns were voiced that the .Mil and .Gov TLDs might no longer be reserved for the exclusive use of the Department of Defense and General Services Administration, respectively. But NTIA moved quickly post-hearing to provide assurance that they would; and this will likely be locked down pre-transition, possibly via contracts executed with ICANN.

The future role of the GAC was amply explored. Testimony and Q&A exchanges clarified that on one hand the GAC would be locked into providing advice by full consensus if it wanted ICANN's Board to have to give it consideration — but that on the other hand the GAC would go beyond its advisory role by having discretion to join the Empowered Community (EC) on accountability decisions, except when the issue being reviewed concerned Board action to implement GAC advice (the "GAC carve-out").

It was made clear that the threat of the ITU expanding its Internet remit would not dissolve regardless of whether the transition proceeded. A recent joint declaration by India, China and Russia favoring such a course was made after the ICANN community approved the transition and accountability proposals.

Sen. Ted Cruz, who elected not to attend the hearing and thereby missed a chance to advance his cause, is reportedly drafting a bill that would halt the transition, at least until affirmatively approved by Congress. But there's not enough time left in this election year for Congress to enact any free-standing legislation, and Cruz would face tough odds attaching that to another bill — especially as it might elicit a Presidential veto.

Just hours after participating in the hearing, Sen. Marco Rubio, joined by four other Senators, dispatched a letter to the NTIA requesting that it consider an extension of its contract with ICANN beyond September 30th to ensure that "the transition establishes a stable system that reinforces the multi-stakeholder model and does not contain unforeseen problems or consequences that could jeopardize the security, stability, and openness of the Internet". Commerce Committee Chair John Thune declared some interest in such an approach, while not yet endorsing it. But NTIA is highly unlikely to act upon it if, as expected, it declares next month that the transition and accountability proposals meet its March 2014 criteria. Further, various trade and public interest groups which support the transition are weighing into Congress against a contract extension.

While two witnesses supported a contract extension, the majority opposed it on such grounds as:

Demonstrating a preference for continued government control versus multistakeholder oversight, at odds with stated U.S. policy

Causing disillusionment within an ICANN community that is gearing up to deal with work stream 2 issues

Not providing an authentic test, since the U.S. would still have ultimate accountability power

Irritating the technical numbers and protocols communities to the extent that they might reconsider their voluntary adoption of the IANA-based DNS

It might possibly take years before the Board acted in a way that justified community utilization of the accountability powers.

While not considered during the hearing, which was largely focused on a possible "road test" of the new community accountability powers, another problem for such a proposal would be whether it could be implemented in a way that also tested the new IANA arrangements — after all, the critical root zone IANA functions are the "dog" in the transition, while the new accountability measures are the accompanying "tail". If NTIA were to simply extend its current contract with ICANN, that could preclude ICANN from entering into new contracts with the separate PTI established to handle the IANA functions, and with VeriSign for Root Zone Management (RZM--which the company presently does under contract to NTIA); resulting in a failure to test these new arrangements, as well as the PTI oversight role of the Customer Standing Committee (CSC).

So with the blunt instrument of an IANA contract extension, you'd get only a partial test of the new accountability measures, and likely none at all of the revised and fundamental IANA functions arrangement. However, it might be possible to design a more sophisticated testing arrangement in which NTIA surrendered its current middleman role of reviewing ICANN's proposed Root Zone changes before authorizing VeriSign to implement them. That would permit ICANN, PTI and VeriSign to wholly assume the IANA functions, yet could reserve NTIA back-up authority to intervene against Board or EC actions that it viewed as a fundamental threat to the DNS or as jeopardizing the security, stability and resiliency of the Internet. But creating such an arrangement in the current political atmosphere and the limited time remaining until September 30th could prove a daunting task.

All of this prior discussion relates to the apple of the Department of Commerce's authorizing committee, and not to the oranges of potential Appropriations Committees' "power of the purse" action to extend the present freeze on NTIA's expenditure of a single penny to facilitate the transition — a step already taken by House Appropriations for the next fiscal year. Enacting that continued freeze could invite a Congressional vs. Executive Branch showdown if NTIA determines that its transition criteria have been met, and the White House elects to take executive action before the next President takes office.

But if that occurs it will not be because of anything that transpired during the Commerce Committee's late yet thorough discharge of its oversight responsibilities.

By Philip S. Corwin, Founding Principal of Virtualaw LLC, a Washington, DC Law and Public Policy Firm He also serves as Of Counsel to the IP-centric law firm of Greenberg & Lieberman. Views expressed in this article are solely his own. Visit Page

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Just after this article went to publication, ICANN's Board announced that it had adopted the revised ICANN Bylaws and would be sending them on to NTIA (see https://www.icann.org/news/blog/new-icann-bylaws ). In response to a question on the CCWG-ACCT email list, ICANN staff provided this additional information regarding whether the Bylaws would go into effect if the Transition was delayed —

Here is the language from the Resolution on the effective date:
"Resolved (2016.05.27.02), the New ICANN Bylaws will be deemed effective upon the expiration the IANA Functions Contract between ICANN and NTIA.
The Board reaffirms its Resolution 2016.03.10.18, stating, 'The Board is committed to working with the community to identify the portions of the CCWG-Accountability recommendations that can be implemented in the event that it is determined that ICANN's obligations to perform the IANA Functions will remain under contract with NTIA."

-- In short, if the present IANA functions contract is extended the new Bylaws will not go into effect until the board engages in further dialogue with the community, and there could be no "test drive" until they are made operational.

Congress could demand that they be fully implemented as a pre-condition for a future termination of the contract, but that could create another confrontation in which substantial portions of the ICANN community might side with the Board.

All this further argues against the blunt force approach of a contract extension as a means of addressing Congressional concerns.